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Reading Between the Lines of the Devin Nunes Memo

After weeks of hype, representative Devin Nunes has released his memo. National security experts aren't impressed.

Joshua Roberts/Reuters

After weeks of Twitter users demanding Congress #ReleaseTheMemo, the House Intelligence Committee—chaired by Republican Devin Nunes— disclosed the contentious four-page report to the public Friday, after President Donald Trump signed off on its release. And while, as expected, the document alleges that federal law enforcement officials abused their surveillance powers in investigating the Trump campaign's ties to Russia, national security experts see something very different. In fact, they see almost nothing at all—or at least not enough to make any definitive judgement calls.

As had been rumored, the memo details supposedly improper actions by law enforcement officials in seeking a warrant to wiretap Carter Page, one of Trump's campaign advisors. But understanding what the memo says—and, critically, doesn't say—requires familiarity with the secretive Foreign Intelligence Surveillance Court, which governs requests made under the Foreign Intelligence Surveillance Act, better known as FISA. Those who know the law best say the memo is largely bunk.

“We don't know anything more than we knew before. Certainly we don't have evidence of a scandal," says Elizabeth Goitein, co-director of the Liberty and National Security program at New York University School of Law’s Brennan Center for Justice. "If there's a scandal here it's the fact that this has been built up in a way that will allow Trump to try to discredit the Mueller investigation."

Between the Lines

What no one disputes: In October 2016—several weeks after he had left the Trump campaign and months after the Russian investigation had begun—the Department of Justice obtained a warrant to surveil Page. It did so under Title 1 of FISA, nicknamed "traditional FISA," which requires law enforcement demonstrate probable cause to a judge on the FISC court that a potential target is an agent of a foreign power.

That means the government had to show Page was acting as an operative for Russia. That would have required an extensive application, which would have been reviewed by a number of Department of Justice lawyers in the National Security Division. Here's where the memo comes in.

'The dossier and Steele and all that—it’s cherrypicking a piece of what was probably a 50, or 60, or 100 page application.'

William C. Banks, Syracuse University College of Law

Nunes alleges the Page application leaned on information gleaned not directly from the FBI, but from a dossier written by former British intelligence officer Christopher Steele. Yes, that dossier, made public last year and subsequently revealed to be financed in part by the Democratic National Committee and Hillary Clinton’s campaign.

This is the controversy: Purportedly unverified research, funded by Democrats, led to the surveillance of an advisor to a Republican presidential candidate. Nunes alleges that the FBI and the Department of Justice did not tell the FISA judge who approved the warrant that the information may have come from a biased source, despite having numerous opportunities to do so.

But the memo also doesn't say several things. It doesn't accuse anyone at the Department of Justice or the FBI of violating the law. It doesn't claim that the entire dossier is false—just that the FISA warrant application to surveil Carter Page relied on portions of it. And most importantly, the memo doesn't say whether law enforcement corroborated the Steele dossier claims that appeared in that warrant.

In fact, those who follow FISA law closely say that even if the Steele dossier was considered as part of the application, there's no way that it was the only intel. Because FISA warrants are confidential, no one knows what other information was included. But FISA warrant applications require incredible rigor and thorough documentation. The Nunes memo itself acknowledges that the Steele dossier formed only a "part" of the application.

"The dossier and Steele and all that—it’s cherrypicking a piece of what was probably a 50, or 60, or 100 page application,” says William C. Banks, founder of the Institute for National Security and Counterterrorism at Syracuse University College of Law.

FISA applications also have to go through an in-depth protocol known as the "Woods Procedure," during which the intelligence community needs to verify every single fact. For example, if the application says a person was on a specific train at a specific time, the agent would need to show Department of Justice lawyers how they found out that information. There are other oversight mechanisms as well. For example, applications need to be first certified by the Director or Deputy Director of the FBI, as well as the Attorney General, Deputy Attorney General, or Assistant Attorney General for the National Security Division. In other words, FISA warrants are reviewed at the highest levels, which is part of the reason Nunes' allegations are so explosive—they implicate multiple parties at the very top of the US intelligence apparatus.

A FISA warrant also needs to be renewed every 90 days—the Nunes memo says Page's warrant was renewed three times. A renewal generally indicates that the existing warrant has been in some way useful; Nunes does not mention anything about any evidence that might have found its way into subsequent applications. “He seems to be talking about what was in the first application, he doesn’t really talk about whether the Steele application was re-submitted every time," says Goitein.

'Despite what this memo tries to imply, it’s not like the Steele dossier turned the FBI onto Page.

Elizabeth Goiten, Brennan Center for Justice

The Nunes memo further neglects to mention that Page has been of interest to intelligence officials since 2013, long before Trump began his campaign and the Steele dossier was written. At that time, FBI agents reportedly obtained recordings of Russian foreign intelligence officials talking about soliciting Page for recruitment. They later warned him that Russia had targeted him. “They had a full investigation open on him,”says Goitein. “Despite what this memo tries to imply, it’s not like the Steele dossier turned the FBI onto Page."

All of which makes the Nunes memo's focus on Page all the more confounding. The intelligence community targeted him independently of the Trump campaign, and would have needed substantial evidence to surveil him for any period of time.

"FISA judges under the law take into account a whole variety of factors including past and current activities of a target," says Democratic Congressman Ted Lieu. "Typically, when people submit these FISA applications they're really thick documents. This Nunes memo is four pages."

As for any suspected FISA court partisanship, every one of its judges were appointed by Chief Justice Roberts of the Supreme Court, who was himself appointed by Republican president George W. Bush. And though the court does approve most warrant requests, it approved the Page wiretap during 2016—a year in which the court denied many more applications than it had in past years.

"I can't recall any instance in 40 years when there's been a partisan leaning of a FISA court judge when their opinions have been released," says Banks.

The memo does at least succeed in making Steele as well as Glenn Simpson—the founder of Fusion GPS, the firm Steele worked for—look bad. "There is a scandal here that doesn’t really touch on the Justice Department and the FBI,”says Stewart A. Baker, a former Assistant Secretary of Policy at the Department of Homeland Security, referring to the allegation that they had leaked information about the dossier to the media. “[Steele] was using his knowledge of the national security apparatus to do things that he probably shouldn’t have done. To make those things public in the hopes that it would have a particular effect on our election."

And some national security experts argue that the memo does reveal legitimate lapses in the FISA system. "Part of the reason FISA was passed by Congress is to prevent against things like what just happened," says Donna Bartee-Robertson, a former National Security Agency attorney and an adjunct professor at George Washington University Law school, where she teaches FISA law. Bartee-Robertson believes that intelligence officials acted inappropriately by not telling the FISA court about the true origins of the Steele dossier, especially when they had an opportunity to do so with each warrant renewal application

"If you look at that memo, if the memo is true factually, the court did not have all the facts in front of it," says Bartee-Robertson, adding that she would not be surprised if an Inspector General investigation was opened to examine what exactly happened during the Page warrant application process.

Burning Down the House

Ultimately, the memo doesn't amount to anything near the bombshell Nunes and other House Republicans hyped it as. It does, though, make public information that law enforcement officials consider extremely confidential, in a way that seems engineered to intentionally mislead. Releasing the memo will likely sow distrust between intelligence agencies and potential sources, and serves to widen the gulf between the White House and the law enforcement community.

And yet some of even Trump's staunchest supporters in Congress have downplayed its broader significance to special counsel Robert Mueller's investigation into Russian interference in the 2016 presidential campaign.

"The contents of this memo do not—in any way—discredit his investigation," Republican Congressman Trey Gowdy said in a tweet.

Democratic leaders still worry, though, that the memo's release serves as a pretext to firing Mueller or others involved in the Russia investigation, like Deputy Attorney General Rod Rosenstein. "Firing Rod Rosenstein, DOJ Leadership, or Bob Mueller could result in a constitutional crisis of the kind not seen since the Saturday Night Massacre," Senate Democrats wrote in a letter to President Trump after the memo was released Friday.

The FBI, House Democrats, and some Republicans, including Senator John Thune of South Dakota, had all urged for the document to remain confidential or for the disclosure process to slow down. President Trump had the chance to block the memo’s release on national security grounds, or request that some material be redacted, but decided to make the entirety of the document public.

The FBI said in a statement that it had “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy," and House Democrats have authored a counterpoint memo that has yet to—and many never—be released. On Monday, the Republican majority on the House Intelligence Committee blocked the counter memo from being disclosed to the public.

"I would urge my colleagues to take another vote, to release the Democratic memo. We'll see what they do next week," says Congressman Lieu. "If the Republican White House does not release the Democratic memo it significantly undercuts the Nunes memo and will make many Americans wonder what they are hiding."